498a
Davinder Singh
(Querist) 05 May 2012
This query is : Resolved
I have got divorce in 13b from my wife on 23/April/2012 but my 498a quashing is pending in High Court and she did not come even a single time and now she refused to come to high court to give a statement and my lawyer says that if she would not come then the high court dissmiss your quashing and now the next date is 30/july/2012 and pls suggest what will happen?
high court allow my quashing?
or
dissmiss the quashing?
SAINATH DEVALLA
(Expert) 05 May 2012
13B. Divorce by mutual consent. -
Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Now that you have got mutual divorce u/s13B,Quashing of the 498A purely depends on the merits of your petition and the demerits of the chargesheet or FIR.I rate it 50-50 chances for any kind of quash by the high court.
Nothing other than Chargesheet/FIR is considered at the time of Quash Petition to High court.
As per direction given by Hon. Supreme Court...these are the main conditions (any one) to be met for Quashing a Case criminal case. court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to kinds of cases wherein such power should be exercised:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima facie constitute any offence or make out a case againstthe accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
If you feel that your chargesheet/FIR contain any one or more matches from the above list then you can go for Quash at High court. However chances for quashing are very less. High court generally ask the accussed to go for trial and prove them innocent.
V R SHROFF
(Expert) 05 May 2012
Prosecution failure will result in acquittal.
let it go on court record that 13B is allowed.
adv. rajeev ( rajoo )
(Expert) 05 May 2012
Produce the certified copy of the divorce petition and argue the case.
Shonee Kapoor
(Expert) 06 May 2012
Which HC the matter pertains to?
Most HC would quash the matter under same situations.
Even SC has held the same.
If you need the SC Judgment in this regard, feel free to contact the undersigned.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
